What we did was legal, or, in our opinion, could have been legal. Since there are arguments on both sides, we will rely on our opinion. However, we won't let a court decide the question, because then we wouldn't be able to rely on our own opinion.

We won't answer hypothetical questions about what we can do legally or constitutionally. We also won't tell you what we've actually done or plan to do; hence every question you ask will about legality be in effect a hypothetical, and therefore we can refuse to answer it.

In the wake of the State of the Union address, there was a flurry of activity which brought into sharper focus the competing visions on how to rebuild New Orleans and southeast Louisiana generally. There was a sharp negative reaction in Louisiana to the State of the Union because President Bush said so little about Hurricane Katrina and its aftermath. He did not recognize those American citizens who died or those who had risked their lives to save thousands. He did not reaffirm his September pledge to rebuild New Orleans. Instead, he referred to the total amount of money that has been authorized by the federal government so far – $85 billion. In Louisiana, we are heartily sick of hearing this figure.

First, this is money authorized, not spent. Second, it is for all the states affected by Hurricanes Katrina and Rita, not just Louisiana and certainly not just New Orleans. Third, about $20 billion is for tax credits, mostly for business, which are of dubious value given the most substantial problem facing the state – housing. Fourth, a substantial fraction of the money goes to FEMA simply to pay the ordinary expenses of running the agency. Fifth, the rest is largely devoted to three necessary, but not very productive, items: (1) picking up debris; (2) fixing some important infrastructure like bridges and roads; and (3) temporary housing. The last point is important. What New Orleans and Louisiana need is a solution to the problem of the vast number of destroyed and damaged permanent housing, not temporary trailers (which, for New Orleans, haven’t arrived yet). And eventually New Orleans in particular will need some funding to make any local plan happen.

Today’s New York Times says the mayor’s plan has been abandoned, but I see no evidence of that. True, building permits are being handed out not in accordance with the plan, but it was never very likely that they would be suspended. The mayor’s Bring New Orleans Back Commission finished submitting a fine set of reports last week (available on the web) and the mayor will announce what parts he accepts or rejects shortly. The main point is that any local plan will require federal funding. So far, the federal answer has been roughly $6 billion in Community Development Block Grants. These are basically all-purpose grants to the state. This is almost certainly not enough to fulfill Bush’s September pledge.

Hence the flurry of activity last week. The Bush administration touted the CDBGs and trashed the comprehensive solution sponsored by Representative Richard Baker. The basic difference between these approaches is that the most the CDBGs can provide is a small grant to homeowners, while the Baker bill provides up to a 60% return on equity, a chance to buy back the redeveloped property and, most important, a chance to redevelop whole areas of the city rather than depend on the actions of outmatched homeowners. So far, the alternative to the Baker bill appears to be mass foreclosures, no chance at any comprehensive plan, and a terrible plague of housing blight. This issue may come to a head at a February 15 Senate hearing scheduled on the Baker bill.

The worst part of the Bush administration’s rejection of the Baker bill has to do with the claim, made in a Washington Post editorial by Donald Powell (the administration’s Katrina coordinator), that it was a heavy-handed federal solution to a problem that must be solved through comprehensive plans adopted by state and local government. In fact, the plans put forward by both the mayor of New Orleans and the governor of Louisiana explicitly depend on the enactment of the Baker bill. Indeed, the Urban Land Institute that assisted the mayor’s well-qualified commission endorsed the Baker bill and the plan of the mayor’s commission cannot go forward without it. In other words, by rejecting the Baker bill, the Bush administration bypassed the state and local plans as developed so far and made them irrelevant. So a truly “federal” coordinated response to the massive tragedy of Katrina has been made impossible. The Brookings Institution reported on February 1 that:

"Hundreds of thousands of households continue to face major obstacles restarting their lives. Nearly 750,000 households remain displaced by Katrina, of which about 650,000 are receiving rental assistance, or about $800 a month. Mortgage delinquency rates skyrocketed between the second and third quarter of the calendar year. In the state of Louisiana, for instance, nearly one out of every four loans is now 30 or more days past due."

I strongly recommend a story in today's Boston Globe by Bryan Bender tellingly titled "As its war sacrifices rise, Puerto Rico debates US tie: Some seek more political rights."

The story points out that "[t]he 3.9 million residents of Puerto Rico are losing a disproportionately high number of soldiers in Iraq and Afghanistan -- at least 48, including those who lived in Puerto Rico but signed up for the military on the US mainland." This is leading to renewed calls for Puerto Rican statehood. "Next week, Puerto Rican leaders plan to lobby Congress to act on a recent White House task force that recommends giving Puerto Ricans the chance to decide, through a referendum mandated by Congress, whether they want Puerto Rico to remain a commonwealth or to change its political status. And if Puerto Ricans want a change, the panel recommended, Congress should set up another plebiscite to let them choose full independence or becoming the 51st state."

Needless to say, there would be nothing binding about these votes. It is ultimately up to Congress to decide whether to admit Puerto Rico. The political and quasi-constitutional issues would be enormous: Although Puerto Rico's non-voting delegate to the House of Representatives is a Republican, it is hard to believe that the approximately 7 represenatives that a state would be entitled to wouldn't be largely Democratic (not to mention the two Senators), given the economic needs of what would instantly be the US's poorest state. (This hasn't stopped the Deep South from turning Republican, but that is almost certainly the result of racial and religious politics more than a "rational assessment" that tax cuts for the rich are really the best way to bring economic development to Alabama and Mississippi.) Even more to the point, of course, is the fact that Puerto Rico is largely Spanish-speaking, and any serious move toward Puerto Rican statehood is guaranteed to bring the politics of language to center state, with, I suspect, accompanying acrimony. Could/would Congress condition statehood on adopting English as its official language? Langauge politics played a role in the delayed admission of New Mexico and Arizona, and Utah, notably, had to renounce polygamy before being admitted in 1890. Could/should Congress be so heavy-handed in today's world?

And would Puerto Rico be allowed to declare its independence if rejected for statehood? Can one imagine, for example, an independent Puerto Rico being allowed to establish warm relations with the Chavez government in Venezuela or kicking the US Navy out of its bases there? Taney is Dred Scott argued that the Constitution didn't allow the US to possess long-term colonies; the dissenters in the 1901 Insular Cases embraced this aspect of Dred Scott to protest the acquiescence by the majority in an "imperial vision" of the US that allowed us to become just like Great Britain, France, Germany, and other expansionist powers with their subordinate colonies. Will the US find itself in the position of allowing neither statehood nor independence to Puerto Ricans, whatever may be their wishes because, after all, "we" have our own conception of "our" interests that includes neither possibility.

Puerto Rico, though the world's largest remaining colony--in the specific sense that its residents have no formal rights to participate in the politics of the country that claims sovereignty over it--usually remains way off the radar screen of most Americans (who will undoubtedly be surprised to learn that the island has its own Olympic team, which would presumably be disallowed if it joined the Union). The Globe piece suggests that we could all find ourselves thinking more about Puerto Rico in the future, with significant consequences for the American polity.

Senator Pat Roberts of Kansas, Chairman of the Senate Intelligence Committee, today issued a 19-page letter to the Senate Judiciary Committee in which he became (as far as I know) the first member of Congress to opine that the NSA's doemstic wiretapping program is lawful. Senator Roberts's argument is, almost in its entirety, that to the extent FISA purports to provide the "exclusive means" for the President to engage in electronic surveillance -- and Senator Roberts agrees that FISA does so (pp. 10-11) -- FISA is unconstitutional. (For a contrary view, sent to the Congress yesterday by 14 constitutional law professors and former government lawyers, see here.)

Notably, Senator Roberts does not really indulge DOJ's untenable argument that Congress gave the President the authority to override FISA -- and that Congress impliedly repealed the "exclusive means" provision of FISA -- when it enacted the force authorization related to Al Qaeda on September 18, 2001. To be sure, in the Conclusion to his letter, Senator Roberts mentions en passant that he "do[es] not discount" the AUMF argument -- but he doesn't try to defend it in the slightest. Indeed, he does not even suggest that when he himself voted for the AUMF, he intended -- or had any inkling -- that FISA was being overriden and in part repealed. His argument, instead, is that the President's constitutional authorities "should be the beginning and end of our legislative inquiry into the 'legality' of this program. It is quite clear to me that Congress could not, through passage of FISA, extinguish the President’s constitutional authority to conduct the terrorist surveillance program at issue." Senator Roberts concludes (p.13) that the Supreme Court would, "even after FISA, determine that Congress cannot define the 'exclusive means' for the conduct" of the President's electronic surveillance within the United States.

[UPDATE: On a closer read of the letter, something -- or rather, the absence of something -- jumped out at me: There's no argument -- none at all -- about why FISA is unconstitutional. Senator Roberts argues that the President had the constitutional authority to engage in such surveillance prior to FISA; that FISA was specifically designed to limit that Executive authority by statute; that therefore the President's authority is at its "lowest ebb" as described in Justice Jackson's Youngstown concurrence; and that the surveillance in question is very important. But he nowhere explains why the President prevails in the constitutional analysis even at the "lowest ebb." Did I miss an argument in there somewhere to support the "I believe the Supreme Court would recognize" assertion? (In a parenthetical, Roberts suggests that the Court "arguably has recognized" that Congress violated the Constitution by enacting FISA. But his only citation for that suggestion consists of the denials of certiorari in Truong and Butenko, neither of which raised the question of FISA's constitutionality because both cases involved surveillance prior to FISA's enactment.)]

It's a rather remarkable and unusual event when the Chair of a congressional intelligence committee asserts that the landmark framework statute over which his committee has jurisdiction is unconstitutional. But that is what we've seen today. (One wonders why Senator Roberts did not, over the past five years, respond to the several enacted and proposed amendments to FISA, including in the PATRIOT Act, by saying they were unnecessary because FISA cannot limit the President's foreign-terrorism-related electronic surveillance.)

One other important thing about the Roberts letter: He reveals what many of us had suspected -- namely, that one reason the Administration is circumventing FISA is because it is engaged in interceptions that the FISA Court could not approve under the law as currently drafted: "FISA’s burden of proof -– probable cause that [the targeted] individual is an agent of a foreign power -– is higher than the 'reasonableness' the Fourth Amendment requires and does not enable surveillance of all the assistants and collaborators of our enemies that the President should target for intelligence collection."

Now, it should be understood what Roberts is saying here: FISA does not regulate at all the surveillance of "all the assistants and collaborators of our enemies" insofar as the interceptions occur overseas -- even if the communications are with persons in the U.S., NSA may freely intercept those calls (or that's my understanding, anyway). And even if the interception is made here in the U.S., FISA allows for a judicial order upon a showing of probable cause that the person in the United States whose phone or computer is targeted is "an assistant or collaborator of our enemies." Therefore, what's at issue here is (i) the targeting of U.S. persons who are not suspected of being Al Qaeda assistants or collaborators, but who are calling persons overseas who are suspected of being such; and/or (ii) the targeting of U.S. persons who the NSA suspects of being "assistants or collaborators," but where there is not probable cause to believe it.

(By the way, Roberts confirms that "assistant or collarborator" is defined very broadly, to include not only members of Al Qaeda or those who assist in Al Qaeda's terrorist operations, but also persons "affiliated with" Al Qaeda and persons who are members of "organizations affiliated with Al Qaeda." Thus, some of the intercepted calls might not involve any party who is in league with Al Qaeda or who is otherwise even suspected of having had anything to do with the attacks of September 11, 2001.)

Randy Barnett's recent Taft Lecture, available here, is a good short introduction to his contributions to constitutional theory. It is couched as a criticism of Justice Scalia, but in fact it's really an excellent summary of the main themes of Randy's book, Restoring the Lost Constitution. I was particularly interested in it because Randy offers a new foil to distinguish his theory of original meaning originalism. He calls it the "underlying principles" approach, which in his words, "discern[s] from the text the deeper underlying principles that underlie is particular injunctions." He claims that this is a very widespread approach, which, indeed, it is. More controversially, he also claims that adherents of this approach "appeal to these underlying principles to limit the scope of the text or ignore it altogether," while his approach is presumably more faithful to the constitutional text.

Randy does not identify any particular adherents of this underlying principles approach, although he claims that it is very common. He might well have picked me as his foil, for as I have argued here, the combination of the original meaning of the constitutional text plus underlying principles is a pretty fair first approximation of my normative approach to constitutional interpretation. (As opposed to my positive theories of how the Constitution actually changes over time).

So I want to use this opportunity to defend what I shall call the "text and principles" approach from Randy's criticism. But I want to do more than this. I want to suggest that Randy's own approach is actually quite close to if not indistinguishable from the "text and principles" approach he seems to criticize. That is, if Randy believes that I am now an originalist, I want to claim that he is actually an adherent of the text and principles approach, or, at the very least he should be.

I begin by considering why Randy thinks the underlying principles approach is objectionable. He offers three reasons:

First, as his account suggests, he is worried that an appeal to underlying principles will be used "to limit the scope of the text or ignore it altogether."

Second, he argues that "because the underlying principles are not themselves in writing and are often far from incontestable, it is hard to be sure they are not just the preference of whoever is doing the 'interpreting.'"

Third, he argues that "since the underlying principles, even if correct, are usually very abstract, how they are to be applied in particular cases can be very uncertain." Thus, "if pretty much anyone can play this game to reach virtually any result, then the Constitution is no longer the source of law for law-makers. Instead it is those in the courts who discern the underlying principles who are the real arbiters of government power."

These are all valid concerns. But it is hardly clear that an appeal to underlying principles per se creates any of these dangers, or, to put the point more bluntly, that it creates any of these dangers more than the direct appeal to the original meaning of the text, particularly where the text is open-ended as the privileges or immunities clause and the Ninth Amendment are. Indeed, as I shall argue, the point of appealing to underlying principles is that they help articulate and limit the discretion of judges and legal decisionmakers when the relatively abstract provisions of the text do not provide much guidance.

In fact, Randy has no objection to the use of underlying principles to the extent that "we often do need to consider the principles underlying the text to make sense of it." His real concern is that the principles will displace the text. But for this displacement to occur we have to know what the text really means independent from the principles that it promotes. Sometimes that is easy to do when the text is relatively clear cut. The Framers said that the President must be 35, and perhaps the underlying principle is that he or she be relatively mature. However, the specific age limit controls, and it may not be displaced by the more general principle it enacts.

But when we move to the more abstract and general features of the constitutional text, like the Equal Protection Clause or the guarantee of freedom of speech-- to say nothing of the Privileges or Immunities Clause, or the Ninth Amendment-- it is much harder to see when the underlying principles are displacing the text. Indeed, we need such principles in order to understand how to apply the text to concrete circumstances.

Let me take two examples that Randy offers. First, he asks whether restrictions on paid political advertisements (issue ads) within 60 days of a federal election violate the first amendment. He seems to think that underlying principles would justify the restriction while the original meaning of the text of the first amendment would not. Since I am probably more likely to be on the same side as Randy on the merits, let me play devil's advocate. We don't know whether the limits on issue ads is an abridgment of the textual protection of the "freedom of speech" until we figure out what underlying principles the text promotes. Note that the text of the first amendment guarantees not "speech" but "the freedom of speech," as Alexander Meiklejohn famously pointed out. That freedom does not include every act of speech, and it is subject to reasonable regulations. To decide whether the ban on issue ads violates "the freedom of speech" we need to generate a theory about what kinds of regulations are reasonable and what kinds are not. To do that we will have to figure out what principles underlie the first amendment's text. But we are not done yet. We will also have to come up with some implementing rules in the form of doctrines that will help us apply the text and its underlying principles to concrete cases. Much of the work of courts that is called "interpretation" is actually the construction of these implementing rules. These implementing rules are not foolproof, and they are often controversial, and their scope and reach change over time. But they are necessary to the workaday task of articulating and applying an abstract textual guarantee. For example, if we think that time place and manner regulations are consistent with "the freedom of speech," and we believe that the 60 day limit on issue ads is part of a more general scheme of time place and manner regulation, then the limit is not inconsistent with "the freedom of speech." In fact, I am fairly dubious that this is so for reasons I cannot get into here, but that is how you would go about thinking about the problem.

Or take Brown v. Board of Education. The text of the Equal Protection Clause does not tell us which inequalities violate the Fourteenth Amendment; moreover, the law abounds in practices and statutes that treat things differently. To understand how the Fourteenth Amendment applies to the case of school segregation (and, here, in particular, we would have to look to the Privileges and Immunities Clause as well as the Equal Protection Clause) we have to have some sense of the underlying principles that animate the amendment. If, for example, the amendment promotes a conception of equal citizenship and is designed to prohibit class legislation that creates or maintains a caste of citizens by operation of law, then we have to go on and ask whether school segregation by race does this. And we will need implementing rules just as in the First Amendment case. It is by no means clear that the original meaning of the Fourteenth Amendment conclusively decides Brown v. Board of Education unless we also look to underlying principles to help give us a sense of what the text means. Even when we get to very controversial issues like affirmative action in state institutions of higher education, it is by no means clear that the original meaning of the text definitively tells us how to decide the case. And, more to the point, if we must make use of these underlying principles and implementing rules to decide the case, it is hardly clear that either is trumping or causing us to ignore the original meaning of the text in the manner of my previous example of the 35 year age limit for the Presidency.

I agree with Randy that underlying principles (and, for that matter, implementing rules in doctrine) should not cause us to "ignore or trump" the original meaning of the text. And when it is clear that this has occurred, that is a reason to rethink the principles and modify or even discard the implementing rules. But I do not believe that it is always so clear when this has occurred, when we are interpreting and applying a relatively abstract text like the First Amendment, or the Fourteenth Amendment's equal protection clause, precisely because we need these principles and implementing rules to help us understand how the text applies in concrete circumstances. What Randy does not emphasize sufficiently, I think, is that in many cases we cannot treat underlying principles and implementing rules as a merely extraneous element, unnecessary to the practical task of fidelity to the original meaning of the constitutional text. They are required by the goal of fidelity. Discovering, developing, and applying them is how we can be faithful in our own time. We cannot apply the Constitution's most abstract provisions without the use of principles and implementing rules.

Not only will I agree with Randy that underlying principles and implementing rules may not allow us to "ignore or trump" the original meaning of the text, I will assert that this precept is, in fact, my general view of when constitutional change through interpretation is authorized. Like Randy, I do not believe that stare decisis is an inexorable command when it is inconsistent with the Constitution's meaning, and unlike many liberal constitutionalists these days, I do not think that the best way of preserving the Constitution's guarantees is to force judges to swear at their confirmation hearings that they will respect precedent above all else. We should discard old doctrines when we come to recognize that they no longer comport with the original meaning of the text and the principles underlying the Constitution (principles which themselves must always be consistent with the original meaning of the text.). People regularly disagree about when this has happened, and that is why people fight over existing doctrines and seek to overrule and change them. Social movements (and political parties) organize around the belief that their view of the constitutional text and underlying principles is more correct, and they seek to persuade others that their views are the best ones. Constitutional revolutions occur when they succeed in persuading enough people. That does not guarantee that the positive law of the Constitution always reflects the best interpretation of the Constitution. What our system does do is allow everyone a chance to have a say in the interpretation and application of constitutional doctrine in addition to their ability to participate in actual changes to the constitutional text through constitutional amendment.

Randy concludes his essay by arguing that people are tempted to look to underlying principles because "it appears to yield better results than respecting the text and nothing but the text." He gives Brown as an example. But he is wrong to suggest that the choice is either underlying principles or "the text and nothing but the text." As I have argued, we cannot look only to the text when it is relatively abstract. We need both underlying principles and implementing rules to decide concrete cases. We need them to be faithful to the original meaning of the text. The requirement of fidelity demands that the underlying principles and implementing rules must always be consistent with the text. However, as, I have also argued, people will often disagree about the best way to do this and each group will insist that the other side is ignoring the original meaning when in fact they are offering competing interpretations of what it means to be faithful to that meaning in current circumstances. Therefore much constitutional interpretation requires persuasion over long periods of time, both in courts and in the public sphere generally.

Randy gives Dred Scott, Plessy, and Korematsu as three examples of cases where courts used an underlying principles approach and substituted underlying principles for original meaning. I wish he would spell this argument out in more detail, for although I agree that all three of these cases are wrongly decided, I don't think that any of these cases actually involved judges who said they would not follow the text's original meaning. Korematsu, after all, was written by Justice Black who always believed that what he was doing was applying original meaning. Chief Justice Taney insisted that blacks could not be citizens because precisely because the court could not "give to the words of the Constitution a more liberal construction in their favor than they were intended to bear when the instrument was framed and adopted." At most he is making an (bad) argument from original intention, but he is certainly not abandoning originalism for some underlying principles that could change over time. And Justice Brown's opinion in Plessy says nothing about displacing original meaning in favor of underlying principles; quite the contrary, he assumed that the principle that the Constitution did not secure social equality between the races was fully consistent with the text of the Fourteenth Amendment. And, I am afraid to say it, but his views about the original meaning of the Fourteenth Amendment (and the exclusion of social equality from its requirements) was not altogether uncommon at the time he wrote Plessy. (Indeed, the case was decided 7-1.)

The Justices in these cases may have gotten the meaning wrong, but that does not mean that they are members of the underlying principles school that Randy wishes to criticize. Indeed, the examples of Dred Scott, Plessy, and Korematsu serve only to show that people who all seek to enforce the text's meaning will sometimes have very different views about what the original meaning of open ended clauses of the Constitution requires. And as fallible human beings influenced by the political demands of their day, they will sometimes be right and sometimes be wrong.

Near the end of his lecture, Randy gets to the heart of why Scalia has adopted his approach. Scalia wants to protect democratic majorities, and he wants to promote judicial restraint and cabin in judicial discretion. What Randy's original meaning approach does not do, particularly with respect to the open ended clauses of the Ninth Amendment and the Privileges and Immunities Clause, is suggest how to cabin in that discretion. Randy points out that "broad as both these provisions are, they are neither unlimited nor entirely open-ended." I think someone like Scalia would concede the point but respond that they are plenty open-ended enough for judges to impose their personal values in the guise of constitutional interpretation. Randy responds that this discretion "is not a bug" but "a feature." I think he is right about that. However, this is the sort of thing that software companies often say to end users who find their software defective, and for many users it is cold comfort. And in the same way, telling someone like Scalia that of course unelected jurists will have discretion in filling in the meaning of open ended clauses is a feature not a bug will be cold comfort to him.

And that brings me to the point on which I will close, and about which I hope to write more. We ask theories of interpretation to do several different things. We ask them to articulate basic rights and structures of government and apply them to concrete cases, and we ask them to constrain interpreters in performing this function. It turns out that given the Constitution and legal system we have, it is very difficult to do all these things at once. Therefore my view is that the work of constraining interpreters can only be partially achieved by the theory of interpretation. That is a good thing too, because the work of the Supreme Court, as a multimember body, is unlikely over time to correspond with the products of any single coherent theory of constitutional interpretation. Rather, we should look for the mechanisms of constraint elsewhere in the constitutional system. As I've explained elsewhere, the most important sources of constraint come from constitutional structure-- the combination of the party system and the appointments process, which continually pushes the Supreme Court toward the views of the national political coalition. This constraint is not the same as a constraint that forces judges only to produce correct interpretations of the original meaning of the Constitution, but it is, on the whole, a more reliable constraint than announcing the best theory and expecting a multimember court to apply it faithfully over time.

I'm honored to be part of a diverse group of 14 constitutional scholars and former government officials who have joined together to question the legality of the NSA domestic eavesdropping program. I've previously posted about our original letter to Congress, which can be found here. The Department of Justice thereafter made public an unsigned "White Paper" attempting to provide a legal justification for the NSA program and addressing several of the arguments we had made.

Today, we sent to Congress this letter in which we respond to the DOJ White Paper. Here's the Summary:

The administration has continued to refuse to disclose the details of the program, and therefore this letter, like our initial letter, is confined to responding to the DOJ’s arguments. The DOJ Memo, while much more detailed than its initial letter, continues to advance the same flawed arguments, and only confirms that the NSA program lacks any plausible legal justification.

In our initial letter, we concluded that the Authorization to Use Military Force against al Qaeda (AUMF) could not reasonably be understood to authorize unlimited warrantless electronic surveillance of persons within the United States, because Congress had clearly denied precisely such authority in the Foreign Intelligence Surveillance Act (FISA), and had specifically addressed the question of electronic surveillance during wartime. We also found unpersuasive the DOJ’s contentions that the AUMF and FISA should be construed to authorize such surveillance in order to avoid constitutional concerns. FISA is not ambiguous on this subject, and therefore the constitutional avoidance doctrine does not apply. And even if it did apply, the constitutional avoidance doctrine would confirm FISA’s plain meaning, because the Fourth Amendment concerns raised by permitting warrantless domestic wiretapping are far more serious than any purported concerns raised by subjecting domestic wiretapping to the reasonable regulations established by FISA. The Supreme Court has never upheld warrantless domestic wiretapping, and has never held that a President acting as Commander in Chief can violate a criminal statute limiting his conduct.

As explained below, these conclusions are only confirmed by the more extended explication provided in the DOJ Memo. To find the NSA domestic surveillance program statutorily authorized on the ground advocated by the DOJ would require a radical rewriting of clear and specific legislation to the contrary. And to find warrantless wiretapping constitutionally permissible in the face of that contrary legislation would require even more radical revisions of established separation-of-powers doctrine.

Why the Administration is stonewalling on its justifications for the NSA program

JB

This New York Times article notes that the Bush Administration is unwilling to provide the Office of Legal Counsel's original legal justifications for its NSA program, arguing that a memo released last month contains all the relevant legal arguments. If that is so, one wonders why it is so unwilling to release the original memos, like many other OLC memos that are publicly available.

One reason is that the memos contain classified material, but that material can be redacted. We are particularly interested in the legal reasoning, not the classified data.

Another reason is that the legal advice given to the President must remain confidential in order to encourage frankness by his lawyers. But that argument is undermined by the wide range of OLC memos that are publicly available as a matter of course, and also by the fact that the White House claims that the legal advice in that memo is the same as that contained in the January 2006 response. Indeed, if the President is directing his subordinates to act on legal advice that affects the civil liberties of American citizens, there is a strong argument that citizens have a right to know the basis of his reasoning that their rights are not being violated.

Another, more interesting possibility, adverted to by Anonymous Liberal here, is that the defense of the NSA program is premised on the same legal arguments as Assistant Attorney General John Yoo's (in)famous but as yet undisclosed March 14th, 2003 legal memo, which Marty has described here.

As best we can tell, that memo-- which probably dealt with the Uniform Code of Military Justice and the Federal assault statute-- offered an extremely strong Article II argument which authorized the President to disregard statutes (including criminal laws) that he felt interfered with his authority as Commander in Chief. That memo was disavowed by Jack Goldsmith (and others) at the OLC in December 2003; but, notably, the constitutional claims made in Yoo's memo were never specifically disavowed by the Administration, and, indeed, Attorney General Gonzales dodged the ultimate legal question of the President's Article II authority to disregard criminal statutes when it was posed to him at his confirmation hearings.

The Justice Department's current position is twofold. First, it argues that Congress's September 18th, Authorization for the Use of Military Force (AUMF) provides the President with all the authority he needs to conduct surveillance of American citizens. Second, it retains a modified version of Yoo's Article II on steroids theory-- so that the AUMF is actually unnecessary to justify surveillance-- but the argument has now been made more complex. It is now posed as the claim that one should construe FISA and the AUMF as in perfect harmony with each other and with the President's Commander-in-Chief powers under Article II so to avoid possible constitutional problems. (It also argues, however, that if the constitutional question is not avoided, FISA is *unconstitutional* to the extent it interferes with the Commander-in-Chief power).

If all this is true, why can't we see the March 2003 memo? One likely reason is that if the original basis for the NSA program was indeed Yoo's Executive power on steroids theory, it would be extremely embarrassing to the Administration. First, the theory as Yoo originally proposed it has no logical stopping point. Second, were the original memo to see the light of day, it would make clear that the full throated version of the theory-- that the President is not bound by criminal laws when acting as Commander-in-Chief-- was never, in fact, disavowed by the OLC or by the Administration. One can only imagine the political fallout from such a revelation. It would put, for example, the President's signing statement accompanying the McCain Amendment in a particularly bad light.

But political embarrassment is not a sufficient reason to stonewall when constitutional theories this radical are driving the Executive's actions. It is incumbent on the Administration to state its constitutional claims forthrightly and have them debated publicly, rather than to concoct them surreptitiously and direct its employees and agents to disregard federal law on the sly. If the members of the Administration secretly believe that the Commander in Chief power cannot be constrained by criminal laws-- particularly those limiting domestic surveillance-- the American public needs to know the sort of people in whom it has entrusted Executive power.

Judge Richard Posner's comments in the New Republic on how he would go about deciding the constitutionality of the NSA surveillance program are refreshing for their honesty:

You [Professor Philip Heymann] say that "First we have to address ... the defiance of legislated prohibitions and the absence of published standards and any known system of accountability to the other branches." Why first? The way I approach a case as a judge--maybe you think it heresy--is first to ask myself what would be a reasonable, sensible result, as a lay person would understand it, and then, having answered that question, to ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion. That is how I would proceed if asked to decide a case challenging the legality of the NSA surveillance program. I would try to find out as much as I could about the program--its contribution to national security and the inroads it makes on liberty and privacy--before I started waxing indignant over it, and that indeed is what I have tried to do, and the result of that inquiry is my article. I missed such an inquiry in the letter to Congress you co-signed that was published in The New York Review of Books.

Posner then goes on to add that, even so, "not every good thing is legal," and he does not want to pre-judge the legality of the NSA program, only discuss the virtues of its policy so that Congress might amend the statute. Yet at this point the cow is out of the barn door. If Posner's view about how to judge a case means deciding whether the policy result is good and then "ask[ing] whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion" he has sent pretty strong signals about his priors if he were asked to decide the case.

The ironies abound. If this is how defenders of the NSA program must proceed in order to argue for its legality, they well fit the caricature of judicial activism that generations of conservatives have tarred liberals with when liberals argue for extensions of civil rights and civil liberties protections. That is, instead of being constrained by law in the first instance, defenders argue that a program would be good policy and therefore strain to find that it is not illegal or unconstitutional.

Posner, however, is no ordinary conservative. He has long abandoned the belief that one must speak in pious platitudes about doing what the framers intended, or not legislating from the bench. He regards all this as mere blather designed to mystify what is really going on in legal decisionmaking. Instead, he views the judicial task "pragmatically," in his words, as an extension of ordinary policy discourse, which is only mildly constrained by legal texts and doctrines, if at all.

Posner's candor lays bare a jurisprudential problem for both sides of the ideological spectrum. Defenders of the President must come up with what I can only regard as makeweight legal arguments for justifying what he has done, arguments that would indeed require judges to legislate from the bench, if that hackneyed phrase has any meaning. (For those of who you want a detailed defense of that claim, I direct you to Marty's many posts on this site.)

Moreover, the muscular presidency that the Republican Party now promotes also has little connection to the original understanding of the President's power, despite Professor Yoo's valiant efforts to selectively quote sources to suggest that it is so. Rather, the best defense of expanded Presidential power is that the Constitution must keep up with the times, or as it is so often put, that "9-11 changed everything." That is to say, to justify their constitutional claims, defenders of the President must become that most dreaded and hated of liberal stereotypes, a bevy of living constitutionalists.

But lest liberals rejoice in this irony, it is worth noting that Posner's candor challenges them as well. Posner has dared critics of the President to abandon a debate about what the rule of law requires and concern themselves only with what the best policy is. To respond to this challenge, critics must rediscover and renew their faith in the rule of law-- in the importance of law as an institution that constrains arbitrary power even when that constraint also prevents *them* from doing what they think just and right.

The rule of law, as I have said before, is a political value as well as a legal value. It is a political value of restraint that we take upon ourselves so that we can demand the same restraint from others when the power of the state rests in their hands. The rule of law can be, and has been, used to perpetrate or apologize for many injustices in human history. But it has one saving grace-- that it offers us a place to stand when we object to the aggrandizement of power by those who are utterly convinced that they come to us as saviors. For many years conservatives warned us about would-be saviors of the left, who would sweep away legal restraints to pursue their vision of a just society. It is time to stand up to the would-be saviors of the right, who seek to concentrate unaccountable power in order to pursue their vision of national security.

I will gladly accept the invitation of my friend Marty Lederman to say a few words about life tenure, largely because I can also bring to your collective attention a new collection co-edited by Roger Cramton and Paul Carrington, REFORMING THE COURT: TERM LIMITS FOR SUPREME COURT JUSTICES, just published by the Carolina Academic Press. It brings together a collection of people from across the political spectrum (including, for example, Steve Calabresi, one of the founding fathers of the Federalist Society). Most, though not all, of the participants oppose life tenure. Calabresi and his Northwestern colleague Jim Lindgren point out, for example, that the average length of tenure between 1911-1940 was 16 years and dropped to 12.2 years between 1941-1970 )perhaps skewed by the one-year term of James Byrnes and the 4 or 5 year term of Charles Whittaker). The average length between 1970-2005 is 26.1 years! And the average age of leavetaking in this period has been just short of 80. This is crazy. Almost no other country has this kind of "real" life tenure, as distinguished, say, from "life tenure with age limits." And most countries, at least in constitutions written since World War II, have wisely chosen to have limited terms for their highest courts.

The best defense of our system is offered by Ward Farnswroth, who offers a shorter version of an article that has also been recently published in the Illinois Law Review. Farnsworth is an interesting (and independent) thinker, but I think it's fair to summarize his argument as of the "if it ain't broke, it doesn't need fixing" genre. He freely admits that no one advising some other country on "constitutional design" would suggest the US system. Most of us believe that the system IS broken, for reasons ranging from the political gaming of appointments (with an incentive to appoint youngsters) and resignations, not to mention the fact that a depressing number of judges have stayed on even after losing (at least) a step in mental acuity. The worst example was William O. Douglas, but, alas, he's not the only one. (David Garrow has a piece in the Carrington-Cramton book on this.)

The major disagreement between Calabresi-Lindgren and myself is whether one would need a (practically unattainable) constitutional amendment in order to establish term limits (we all agree that 18 years would be the right term) or whether this could be done by legislation. My piece in the book argues for the latter, since the Constitution simply does not SAY "life tenure." It, instead, says that a judge can't be impeached so long as his/her "behaviour" is "good."

My thanks to Marty for giving me this chance to plug an interesting collection.

Here’s a Forbes column that Barry Nalebuff and I just published exploring yet another context – executive compensation -- in which keeping decisionmakers in the dark improves their choices.

Rob Gertner and I long ago extolled the virtues of information-forcing rules but it turns out that there are lots of contexts where information-dampening rules or information-screening rules do a better job.

But mandating ignorance is also behind the idea of blind grading and double-blind experiments and the wonderful Toblin letter.

Even the “you cut, I choose strategy” that underlies break up strategy is an example of information-screening because the cutter doesn’t know which side the chooser will choose.

A really interesting question is whether there is a general theory for when the law should adopt information-forcing, and information-dampening strategies (and when the law should just sit back and let private parties decide whether or not to become informed). I'd love to hear any suggestions from this blog's wise readers . . .

Over on SCOTUSblog, I was just noting the remarkable fact that Justice Alito will be only the third person to hold the "eighth" Supreme Court seat in my lifetime -- and then I realized that it wasn't so remarkable, in that come this June 5th, the "fifth" seat, currently held by Justice Stevens, will have changed hands only twice in ninety (yup -- 90) years!

That's a provocation to my co-blogger Sandy Levinson, who's been valiently carrying the torch for a constitutional amendment to establish 18-year Terms for Supreme Court Justices.

This New York Times article describes a twenty year plan among conservative legal elites to stock the federal courts with conservatives, in preparation for packing the Supreme Court with more of the same. At the margin, the various machinations described in the article may have mattered some. Far more important, however, were repeated victories at the polls and the transformation of the Republican Party into a social movement party. It is the success of that social movement (or more correctly, interlocking set of different conservative social movements) that produced today's conservative Supreme Court majority. If you don't like what the Supreme Court is doing today, you or your parents shouldn't have voted for Ronald Reagan, George H.W. Bush and George W. Bush. And if you want more moderate Republican appointees to the federal courts, you or your parents should have returned more Democrats to the Senate. Sure there can be variations at the margin, but you have to look at the larger structural features that have help shape the current situation. When you have a Republican President and 55 Republican votes in the Senate, you should pretty much expect appointments like John Roberts and Samuel Alito.

My friend Sandy Levinson has pointed out that under the new Iraqi Constitution passed with the blessing of the Bush Administration, the NSA spying program would be unconstitutional. Article 38 provides:

The freedom of communication, and mail, telegraphic, electronic, and telephonic correspondence, and other correspondence shall be guaranteed and may not be monitored, wiretapped or disclosed except for legal and security necessity and by a judicial decision.

Well, it looks like we are bringing freedom to Iraq. Now if we could only get some of that freedom here in the United States.

So the battle lines are drawn. What's the next move for those, especially in Congress, who think the NSA program is unlawful?

The first of VP Gore's proposals for dealing with the problem is appointment of a Special Counsel.

Three weeks ago, I wrote here that because the dispute is almost entirely over the proper understanding of the law, it appears that the legal predicate for appointing a Special Counsel cannot be met, and that, in any event, such a Counsel would not be empowered to disagree with the legal judgment reached by the President and Attorney General as to the legality of the NSA program. Since then, friends who know more about such things than I do have just about convinced me that I was probably wrong -- that a Special Counsel could be appointed, and could be empowered to reach an independent legal judgment about the legality of the program.

I won't rehearse those arguments here, however, because they're beside the point: The AG is not going to appoint a Special Counsel with a mandate to review the AG's understandings of the AUMF and Article II; and even if there were a Special Counsel, and even if that Counsel concluded that the NSA program is unlawful, so what? At that point, you'd simply have one lawyer agreeing with a majority of Congress, and disagreeing with the AG. Which would accomplish not much of anything -- no more than if the Special Counsel concluded that the AG was correct on the law. In either case, we'd still be fighting about the merits, and the Administration would still be sticking to its guns. [See the comments below for why a criminal proceeding is virtually unthinkable.]

So, what to do? Even if Congress kicks and screams during next month's hearings -- even if it passes another statute saying "FISA -- WE MEAN IT!" -- the President will continue with business as usual.

My friend David Barron has come up with the simple but ingenious idea that Congress should vote for a statute that would confer statutory standing on certain persons to file a cause of action in federal court seeking declaratory relief that the NSA program is unlawful -- say, for example, persons who have a reasonable basis for claiming that they are chilled by the spying program because their employment regularly requires them to make overseas calls in connection with academic or journalistic work related to the war on terrorism.

That way, the Supreme Court could resolve the question, particularly if the plaintiffs could sue for injunctive as well as declaratory relief.

Of course, the President could veto such a bill conferring standing to challenge his program. But I think there'd be some chance of an override (see, e.g., the overwhelming majorities for the McCain Amendment); and, in any event, presumably such a veto would be politically dicey.

Check out his post over on LawCulture. (David discusses the question of Article III standing, too. Comments welcome here on how such a statute could be drafted to best avoid possible Article III hurdles.)

In Senate hearings on the nomination of Judge Samuel Alito to the U.S. Supreme Court, Senator Patrick Leahy asked the question that has been on so many people’s minds: “Why in heaven's name were you proud of being part of CAP?”

Leahy was referring to Alito’s application for a job in the Reagan administration, in which Alito cited his membership in the “Concerned Alumni of Princeton University, a conservative alumni group,” as evidence of his “philosophical commitment to the policies of this administration.”

This 1985 application has embarrassed Judge Alito, because as early as 1973, CAP had publicly stated it opposed adoption of a sex-blind admissions policy at Princeton, and by 1985 several essays in CAP’s Prospect magazine had expressed sexist and racist views of Princeton’s changing demographics.

Like the Inspector in Casablanca, Alito is shocked to learn of CAP’s positions. He has emphatically distanced himself from the racist and sexist policies of the group, saying, “somebody from my background would not have been comfortable in an institution like that, and that certainly was not any part of my thinking in whatever I did in relation to this group.”

It sounds like he was tricked into joining.

Imagine supporting an organization for years, only to learn later that the group had adopted policies with which you were not, in Judge Alito’s words, “comfortable.” Well, Judge Alito is not alone. Thousands of people experienced just this sort of embarrassment when another New Jersey institution articulated and then fought to enforce discriminatory policies – all the way to the U.S. Supreme Court.

In Dale v. Boys Scouts of America, the Court decided that the Boy Scouts’ constitutional right of expressive association included to right to prohibit all gay men from becoming Scout leaders. The court exempted the Boy Scouts from New Jersey’s Human Rights Statute, which generally forbids public membership organizations from discrimination on the basis of sexual orientation.

Many, many people were shocked to learn that their beloved Boy Scouts had taken an anti-gay policy. They said, as Judge Alito says now, “that certainly was not any part of my thinking in whatever I did in relation to this group.” They regretted the time, money, and talent they had devoted to the Boy Scouts over the years. Steven Spielberg resigned from the national advisory board of Boy Scouts of America.

This sad, “if I’d only known” reaction from both Alito and former Boy Scouts suggests that organization members can be victims of a kind of associational fraud when they are induced to join a group without being fully informed of the group’s discriminatory policies.

How could we prevent such associational fraud? We can all start by demanding to know more about the policies of organizations before we join them.

But the law can help. Government has a constitutional interest in promoting informed association. A state like New Jersey might pass an “Informed Association” statute that would require organizations to disclose discriminatory policies to prospective members before they are allowed to join. The statute might even require that members sign a statement acknowledging that they have been fully informed of the organization’s policies and still choose to join.

These written acknowledgements would not need to be made public. An organization with discriminatory policies might only be asked to retain evidence that its prospective members had signed the required acknowledgements.

Many people couldn’t bring themselves to sign a statement acknowledging that they were choosing to associate with a discriminatory group.

But at least part of this predictable decline in membership should be seen as an enhancement in association freedom. The freedom of association also means the freedom not to associate. And associational decisions are impaired if people are duped into joining.

Put another way, the law must give meaning to associational silence. If a group remains silent, what does this silence signal: that the group implicitly represents that it respects the state’s non-discrimination norm, that the group might not, or that group does not respect the norm? Any potential legal inference burdens some members’ associational rights, in that it forces either the members or the organization to speak to assure that their associational preferences are met.Clearly, government cannot and should not force associations to clarify every position they hold. But anti-discrimination laws of general application (like New Jersey’s Human Rights Statute) are fundamental state policies. It’s reasonable for a state to insist that organizations taking contrary positions disclose their true colors to potential members before people join up.

Judge Alito’s own participation in CAP vividly illustrates the dangers of associational fraud. If an Informed Association statute had been adopted by New Jersey, it might have protected Samuel Alito and thousands of former Boy Scouts from unwittingly supporting organizations promoting policies with which they disagreed – or it would allow us more clearly to hold Alito accountable for the policies he supported.

Justice O'Connor, as I suspected, forged a compromise among the Justices in Ayotte v. Planned Parenthood of New Hampshire in what may be her last opinion for the Court. Both pro-life and pro-choice sides win some and lose some, but, as I shall explain at the end, the real winner in this decision is the federal courts.

(1)The first thing to note about Ayotte is that O'Connor got all the Justices, from Stevens to Scalia, to sign onto an opinion that states:

(a) parental notification statutes are constitutional (not a surprise, given many previous precedents); and

(b) "New Hampshire does not dispute, and our precedents hold that a State may not restrict access to abortions that are 'necessary, in appropriate medical judgment, for preservation of the life or health of the mother,'" citing Casey. Now, at first glance, this *is* an interesting concession from Scalia, Thomas, and Chief Justice Roberts. Did they really mean to adopt this position, which is a claim of substantive due process, as binding law? Perhaps not. Perhaps they would say that they merely accept O'Connor's proposition for purposes of this case. Or, equally possible, perhaps they are saying that since New Hampshire did not contest the proposition, and since the precedents actually do say what O'Connor says they do, there is nothing problematic about joining an opinion that notes these facts, although they do not necessarily agree that the precedents are correctly decided.

Note that O'Connor goes on to say that "New Hampshire has conceded that, under our cases, it would be unconstitutional to apply the Act in a manner that subjects minors to significant health risks." Given this concession, and given O'Connor's opening statement that "[w]e do not revisit our abortion precedents today," perhaps there would be no point in Scalia, Thomas, (or Roberts for that matter), concurring in the judgment to state specifically that they continue to reject Casey (if in fact Roberts does).

(2) O'Connor holds that "when a statute restricting access to abortion may be applied in a manner that harms women's health," partial invalidation is to be preferred to total invalidation where possible, when it is not inconsistent with legislative intent, and when clear lines can be drawn on the basis of preexisting doctrine. Presumably, O'Connor is strongly suggesting that existing doctrine would allow a carve-out for emergency risks to a woman's health.

This last point is interesting precisely because Scalia joins it. In interpreting statutes, Scalia generally rejects arguments based on legislative intention. Why, then, is the Court permitted to try to figure out whether the legislature would rather have had a parental notification statute with a health exception or no parental notification statute at all? Why not simply look to the "plain meaning" of the statute?

(3) Now the opinion *really* gets interesting. What about the federal partial birth abortion statute, which makes no exception for cases in which partial birth abortion is medically indicated as having the fewest risks for a woman's health? The court struck down a similar state statute in Stenberg v. Carhart. Here is what O'Connor has to say: "[W]e, too, have previously invalidated an abortion statute in its entirety because of the same constitutional flaw [as New Hampshire's]. . . . We held Nebraska's [partial birth abortion law] unconstitutional [in Stenberg] because it lacked a health exception. But the parties in Stenberg did not ask for, and we did not contemplate relief more finely drawn."

Does this mean that if the issue had been raised in Stenberg, the Court would have upheld the majority of the statute by inserting a health exception? (And does it mean that the federal partial birth abortion statute will be upheld?) Well, maybe not. There was another problem with the partial birth abortion statute in Stenberg-- it reached some early term D&E abortions rather than just late term D&X abortions. So even if the new Ayotte rule had applied, the Court would have had to decide (1) whether Nebraska wanted to include both kinds of abortions or none at all, and (2) whether the statutory language could be interpreted to be restricted only to late term D&X abortions. So it's possible that even if the issue had been raised in Stenberg, the Court would have struck down the whole statute because it had an additional constitutional problem.

In fact, the federal partial birth abortion statute has a similar flaw to the Nebraska statute considered in Stenberg. It is craftily designed to include some early term D&E abortions as well as late term D&X abortions. And it's quite possible that this imprecision was deliberate: abortion opponents wanted to try to outlaw as many abortions as they could.

So although O'Connor's language in Ayotte might suggest that the Federal statute might survive scrutiny with the addition of a judicially crafted health exception, it also might not. What her opinion in Ayotte does is make the second, alternative holding of Stenberg as important as the first holding on the health exception.

(4) O'Connor concludes by stating that since New Hampshire conceded that the statute was unconstitutional as to health emergencies and the plaintiffs conceded that "carefully crafted injunctive relief may resolve this case," the lower courts should try to produce a narrowing construction.

(5) What effects will this ruling have? Who are the winners and losers?

On the one hand, New Hampshire and abortion opponents win to the extent that plaintiffs must now bring what are effectively as applied challenges to new abortion statutes. If the statute is unconstitutional only as to a small number of persons, courts should not strike the whole statute down but impose carve-outs. This means that legislatures are freer to pass restrictive abortion laws with the idea that courts will carve out unconstitutional applications later one.

On the other hand, New Hampshire and abortion opponents lose to the extent that the new rule the Court adopts is not exactly identical to an as-applied challenge. First, it does not necessarily require the development of a record after a full trial, although the court may of course demand one. Second, courts are allowed to hold unconstitutional applications invalid immediately as to everyone, and not just as applied to the parties before the court. Third, the courts can hold multiple features of the statute unconstitutional immediately. This last point becomes clear in the instructions on remand: O'Connor says that the lower court should consider the other constitutional objections that the plaintiffs raise. Thus, legislatures and abortion opponents lose to the extent that courts are given greater leeway to cut up their abortion statutes.

And this brings me to my final point about winners and losers. Under the guise of respecting legislatures, O'Connor has given the federal courts new powers to rewrite abortion statutes based on existing doctrinal categories. This is consistent with O'Connor's general tendency throughout her career to use seemingly narrow holdings to maximize future judicial discretion.

So if you want to know who really was the big winner in Ayotte, the answer is simple: It was the federal courts. They are now freed up to selectively rewrite new abortion statutes in the asserted name of respecting legislative intention and democracy.

What is the controversy about presidential signing statements all about? At first glance, all the fuss seems a mystery. The President can say whatever he likes about the legislation he signs. After all, it's a free country (for the time being). The real question is whether anyone will pay attention to what he says; if not, then the President is just blowing smoke. In this post I want to consider why these statements are causing concern, and why they should cause concern. The answer, I think, is more complicated than it first appears.

There are three possible groups of people whose attention to signing statements might matter: the courts, Congress, and executive branch officials.

First, consider the courts. If the courts take signing statements as appropriate evidence of legislative intention, this increases the power of the President vis a vis Congress.

Note that courts already defer to legislative interpretations by executive agencies under the Chevron doctrine. However, courts do not generally apply the Chevron doctrine to the Justice Department's interpretations of federal criminal law (even though the Justice Department is technically the agency charged with enforcing said law). Perhaps more importantly, courts do not defer to the executive's determination that a particular law is unconstitutional. Nor is there any reason to expect that courts will automatically defer to such claims in the future. Hence if the President is trying to persuade courts to agree with his views on the unconstitutionality of statutes that he signs, he is unlikely to make any headway, or at least, any more headway than courts *already* offer the executive when the executive makes claims about its constitutional authority.

There is an additional irony here: some judicial conservatives-- Justice Scalia being the most prominent-- argue that it is inappropriate for courts to look to legislative history at all in interpreting statutes. For these conservatives, it makes little sense to look to presidential signing statements if you are not going to look to legislative committee reports. After all, the point of looking to the text rather than legislative history is to discipline legislators and force them to be more clear. If the President is treated as a legislator under the theory of presidential signing statements, then he also needs to be disciplined-- in this case to drive a harder bargain or, if all else fails, to wield his veto pen-- if he does not like what Congress has sent him.

The second group of federal officials who might pay attention to Presidential signing statements are the members of Congress. But it is very unlikely that Congress will grant these statements much effect, primarily because it would significantly undermine Congress's prerogatives. Even if one can imagine Congressional acquiescence in a particular case, it is hard to see why Congress would willingly acquiesce to the general practice, at least to the degree that the current Administration has employed it.

This leaves us with the third group of persons who might pay attention to executive signing statements: other executive officials. At first glance, *this* deference seems perfectly reasonable. Obviously, if executive branch officials regard presidential signing statements as binding on their future actions, then the President can interpret statutes in ways that promote his policies. But it is hard to see why this is a serious problem in and of itself. The President already has the ability to require his subordinates to interpret statutes in ways that promote his favored policies, and his ability to do so shouldn't much matter in a wide range of cases. First, we ordinarily expect that the President should be able to order his subordinates to carry out his interpretations of federal law. Second, as noted before, when the President does so, courts already defer to (some) administrative agency interpretations of (some) statutes under Chevron.

The real problem lies elsewhere. It arises when the President orders his subordinates to refuse to enforce statutes on the grounds that he believes that the statutes are unconstitutional *and* there is no way for Congress or the courts to engage in effective oversight or effective responses to push back at the President. That is to say, the problem is not the President's ability to issue signing statements but his ability to direct his subordinates to refuse to enforce federal law routinely and without any consequences.

The relationships between the three branches are ones of simultaneous cooperation and conflict. Branches compete with each other for authority, but they also defer to each other out of comity and out of a desire to keep the government running smoothly. When pressed, the branches will assert their independence from each other. But in the ordinary case, they endeavor not to press their disagreements too hard. For example, the executive usually respects the decisions of courts regarding the constitutionality of statutes, although the executive can always argue that previous decisions are distinguishable. The idea is that if the executive makes too much trouble for another branch, the other branch will find ways of making trouble for the executive, and vice versa. Comity and diplomacy mean not pushing every disagreement into a full scale constitutional crisis, they mean finding ways to get along in order to go along.

This comity or diplomacy is premised in part on the threat that the other branches might bring to bear-- on the ability to hold a particular branch accountable in some way if it consistently stiffs the other branches. But what happens if the President decides *routinely* not to play along, and there is no effective way to push back? One reason why there might be no way to push back is that the President has increasingly isolated himself from responses, for example, through making increasing amounts of his activities secret, or through directing his subordinates to disregard or flout any and all attempts at oversight. If the President begins to do these things fairly routinely, the system of comity and diplomacy on which the separation of powers is based breaks down and we have a serious constitutional problem on our hands.

That is the real reason why people are (or should be) concerned about the increasing number of signing statements under the Bush Administration. The courts and Congress don't have to pay attention to these statements if they don't want to, and, conversely, we expect that presidential subordinates will normally follow his policy directives. So signing statements are not important in themselves but rather as a symptom of a larger concern: The real issue here is whether the proliferation of signing statements signals a significant shift in how the President will treat the other branches in the future. The fear is that the President is starting to push the limits of his power systematically in order to create a new status quo where he is effectively free from oversight in a wide range of situations both outside the United States and within it. The President is gambling that if he refuses to cooperate with the other branches consistently, Congress and the courts will back off because they lack the political and institutional will to punish him. Hence they will prove powerless to stop the President, particularly where foreign affairs is concerned. So, for example, the President keeps his interrogation, detention and surveillance activities secret, and if they are revealed, he dares Congress and the courts to try to stop him, figuring that they won't have the stomach for a full scale fight.

Put another way, the President is saying to Congress and the courts what he said to Iraqi insurgents back in July of 2003: bring it on.

There's a new law blog in town -- LawCulture, established by Viriginia Law Prof and L.A. Times columnist Rosa Brooks and UCLA Law Prof Jennifer Mnookin, and featuring (or soon to feature) such terrific writers as David Barron, Peter Brooks, Jessica Silbey, and occasional Balkinization contributor Kim Lane Scheppele. The "focus" of the blog, such as it is, will be on law, culture, politics and life inside and outside of the legal academy -- that is to say, on everything. Well worth a look.

The Alito hearings make clear that at this point in American constitutional history, a Supreme Court nominee must recite a catechism of belief if he or she is to be confirmed.

The nominee must state that he or she (1) believes that there is a right to privacy, (2) that Griswold correctly protected this right of privacy at least as to the right of married persons to purchase and use contraceptives; (3) that Eisenstadt -- which extends Griswold to single persons-- is correctly decided as to its result; (4) that Brown v. Board of Education was correctly decided, (5) that Plessy v. Ferguson was incorrectly decided, and (6) that the one person one vote principle in Reynolds v. Sims is correct.

The nominee must also agree that Roe v. Wade and Casey v. Planned Parenthood of Southeastern Pennsylvania are Supreme Court decisions that are entitled to the weight of stare decisis. However, the nominee need not agree that these decisions are correct or beyond reexamination in the way that Griswold, Eisenstadt, Reynolds v. Sims and Brown are.

What explains this particular catechism? It is not that the reasoning of the original decisions in Reynolds v. Sims, Griswold, Eisenstadt, and Brown is particularly more accomplished than the reasoning of the Court in Roe and Casey. All of these decisions had problems with the way that they were reasoned. Brown is famous for its-- shall we say-- condensed account of the reasons why Plessy should be overruled (and it does not even overrule Plessy, but simply says that Plessy does not apply to elementary and secondary education).

No, the reason why this particular catechism has developed is that it reflects the views of the current dominant national political coalition about what constitutional questions are off the table for revision. The cases I have just mentioned were not always beyond question in the past, even years after they were originally decided. They were, at one point, controversial. But by the 1964 Civil Rights Act, Brown had entered the pantheon of cases that had to be correct, and one of the interesting side effects of the Bork hearings in 1987 was that Griswold had also entered that list. And we can be quite sure now, as a result of the Alito hearings that the list also extends to Eisenstadt-- which extends Griswold to the right of single persons-- and Reynolds.

The flip side of being settled in this way, is being still up for grabs for future revision or even outright overruling. The coded expression for this is that the issues raised in the previous decision (whether Roe, or Casey, or something else) might someday come before the Court so that the nominee must not prejudge whether the decision should be retained. Obviously the "issues" in Brown and Reynolds come up all the time in current cases-- think about the affirmative action cases and redistricting cases that have come to the court in recent years-- but that is not what Alito or any other nominee really means. The idea is quite different-- that one can disagree about the legitimacy and or scope of the case and still be confirmable, that is, within the mainstream.

If nothing else, Supreme Court nominations have this interesting effect-- they give us clues about what has entered the constitutional catechism, and therefore what different parties have given up fighting about and what they still believe is worth contesting in order to please their particular constituencies. The reason why nomination hearings have this effect is that no Administration wants its nominees to be thought outside the mainstream. To forestall that accusation, members of the Administration must decide what constitutional issues the nominee must accept as beyond question, and, conversely, what constitutional questions are still worth fighting over.

Roe and Casey are perfect examples of this trend. In the views of many Republicans, they are still on the table for revision or outright overruling. Senator Feinstein adverted to this fact indirectly when she said that she had a suspicion as to why Alito was "willing to say that you believe one man, one vote is well settled and you agree with it," but could not say that same thing about Roe: "If you say one thing, you upset my friends and colleagues on that side. If you say the other, you upset those of us on this side. But the people are entitled to know."

Note, however, that the constitutional status of Roe and Casey have mutated over time, and we can see this in the rhetoric that John Roberts and Samuel Alito have used. Both state that Roe and Casey are precedents of the Court entitled to the respect of stare decisis. That may not seem like much to pro-choice advocates, but what it does suggest is that Supreme Court nominees may no longer denounce Roe directly as Bork did in his hearings. I would venture to state now that any nominee who directly and forthrightly stated that Roe and Casey were illegitimate decisions and should be overturned would not be confirmed.

That is important not because it means that Roe has become fully accepted. It has not. What it does mean is that Roe's status has not eroded as many pro-life advocates had hoped it would, even with a Republican President, a Republican controlled Congress, and a Republican majority in the federal courts and the U.S. Supreme Court. The constitutional catechism that Supreme Court nominees must recite is a way of taking the temperature, so to speak, of particular constitutional controversies and the degree to which they have reached settlement. What is remarkable about the Roberts and Alito hearings is not that both nominees have resisted supporting Roe but how far they feel they must be willing to go in disguising their actual views about it.

The January 16 issue of The Weekly Standard contains a remarkable article by Harvey Mansfield, the William R. Kenan Jr. Professor of government at Harvard, in defense of broad executive power. Mansfield is one of the best-known followers of Leo Strauss in academic political philosophy - a notable theoretician, conservative publicist, and (not so incidentally) translator of Machiavelli's The Prince.

In brief, Mansfield argues that the U.S. Constitution creates a strong executive because the framers understood that the rule of law won't suffice in an emergency. When the chips are down, the strong executive must seize the reins and do whatever it takes - and (like the Weimar Constitution whose emergency clause inspired Carl Schmitt to identify sovereignty with the "power of the exception") our Constitution builds the power of the exception into the President's role. Unlike the currently notorious arguments of John Yoo, based on (selective) use of founding-era history, Mansfield defends the monarchical executive through philosophical abstractions ("executive power represents necessity", "The Constitution mixes choice and necessity"). The article is loaded with gravitas, and Mansfield obviously wants to sound deep.

But the depth is all on the surface. Read with care, Mansfield's arguments are profoundly silly.

1. "But enemies, being extra-legal, need to be faced with extra-legal force." A total non sequitur. Worse: mere games with words. A pickpocket is extra-legal, but it in no way follows that he needs to be faced with extra-legal force.

2. "...the first republic with a strong executive." I don't know if that is true. But if so, so what? Before the U.S., there had been only a handful of republics (Rome, Geneva, Florence, a couple of other cities) - but thousands of monarchies with strong leaders. Leadership above the law has been humanity's longest-running experiment in government, not some brilliant innovation of the framers. This sentence is merely slippery in its suggestion that the framers' big, brilliant idea was one-man rule. Until Yoo, I don't think anyone had ever seriously supposed that the framers were aiming to reinstitute monarchy.

3. "...extra-legal powers such as commanding the military, making treaties (and carrying on foreign policy), and pardoning the convicted, not to mention a veto of legislation. To confirm the extra-legal character of the presidency, the Constitution has him take an oath not to execute the laws but to execute the office of president, which is larger." Dishonesty piled on dishonesty; three of them in the first sentence alone:

A. "extra-legal powers such as commanding the military." Not an extra-legal power, because military commanders are governed by law and were at the time of the framing. The American articles of war of 1775 and 1776 require soldiers to obey lawful orders.B. "extra-legal powers such as making treaties". Huh? Treaties require senate advice and consent, and at that point they become law. Nothing extra-legal there.C. "...pardoning the convicted." I suppose it's an extra-legal power, although in practice a pretty trivial one. But criminal juries also have the power of nullification, so this isn't a uniquely executive power. D. "...veto of legislation." Not an extra-legal power, since the veto can be overridden. All the veto really means is that the President can force Congress to pass legislation by a super-majority rather than a simple majority. It's a wrinkle in the law, not a violation of it.

As for the second sentence, it conveniently mentions the oath clause and ignores the take care clause. The President shall (i.e., is required to) take care that the laws are faithfully executed.

So everything in these two sentences except "pardoning the convicted" is nonsense.

4. "Yet the rule of law is not enough to run a government. Any set of standing rules is liable to encounter an emergency requiring an exception from the rule or an improvised response when no rule exists. " True enough. But nothing whatever follows about the Schmittian "power of the exception" falling to the executive. If the executive turned out to be the problem (President goes insane and is about to push the nuclear button), that would be an emergency that would require someone to break the rules and stop the President from launching an attack that his commander-in-chief power might (hypothetically) entitle him to launch. Schmitt's book begins: "Sovereign is he who holds the power of the exception." If Kissinger instructed the generals not to follow Nixon's orders if they seemed wacky, Kissinger was sovereign. If Nancy Kissinger whispered to the generals that they shouldn't follow Henry's instructions when he was in his cups, and the generals went along with her, she was sovereign. Schmitt's sentence is a definition of what a sovereign is, namely whoever can in fact cause rules to be suspended. In no way does it follow from this definition that the chief executive always gets to break the law. Schmitt himself moved to the latter proposition - but it's a logical blunder, the same one that Mansfield commits.

Therefore, "In the Constitution executive power represents necessity in the form of response to emergencies. It anticipates that events will occur or situations will arise that we cannot anticipate through our laws; it anticipates what we cannot anticipate" comes from nowhere except Mansfield's own imagination. Every branch of government is constrained by law. Every branch of government could, under some circumstances, break the rules in an emergency (under the time-honored maxim "It's easier to get forgiveness than permission").

5. "The Federalist tells us that a republican constitution needs energy and stability, terms taken from physics to designate discretion and law." Last time I checked, physics does not include the concept of discretion. A speeding bullet has loads of energy but no discretion about where to go. The Straussians have always been famous for having contempt for physical science matched only by their ignorance of it.

6. "Secrecy is necessary to government yet almost incompatible with the rule of law....Yet secrecy is compatible with responsibility because, when one person is responsible, it does not matter how he arrives at his decision." How can you hold anyone responsible for something if they conceal the fact that it happened?

Thus: "We do not need to know, for example, how important Vice President Cheney is; we can praise or blame President Bush for choosing to be advised by him." Read this sentence. Then read it again. Then scratch your head and ponder on what basis we can praise or blame Bush for choosing to be advised by Cheney if we don't know whether Cheney advises him.

7. "...American society, in imitation of American government, makes so much use of one-man rule. In all of its institutions--corporations, unions, sports teams, gangs, and universities--our republic likes to place power in the hands of one person, and then hold him responsible." I don't know much about the structure of the Mafia or Mara Salvatruccha, and I suspect that Harvey Mansfield doesn't either. Do they have one-man rule? Is the capo held responsible? Anyway, I didn't think that either of these gangs were "institutions of our republic," but maybe, if you believe in the power of the exception and the need for extra-legality, that little difficulty drops away. Does Harvard enjoys "one-man rule"? Thank heaven that none of the universities I've ever been associated with has had it. Who's the one-man ruler of the Yankees? Steinbrenner or Torre? If the former, who's holding him responsible? If the latter, how much power does he have? None of this stuff seems even close to correct; but the fact that Mansfield looks at American society and sees one-man rule everywhere speaks volumes about him.

8. "From this standpoint the 1978 Foreign Intelligence Surveillance Act is a mistake. That law makes surveillance subject to approval by a secret court of judges, who are thereby placed in a false position. If they give approval readily, they go against their profession as judges and fail to give judicious consideration to each case. Yet if they think as judges in terms of criminals rather than enemies, that may do harm to the country." This displays a remarkable level of misunderstanding of what judges do (remarkable if you hold a named chair in Government at Harvard). Whether judges give approval readily or not depends on what the legal standard is. If it's "probable cause" or "some evidence", or even less, the law tells them to give approval readily. If it's a higher standard, the law tells them to give approval less readily. They should give judicious consideration to each case even if the standard is so permissive that they always give approval. Mansfield seems to suppose that judges are required to "think in terms of criminals" - a TV caricature of what judges do.

9. "We note that President Bush's critics do not want him to stop surveillance; they just want him to do it legally--as if legality could guarantee success and morality could make our enemies give up. " More non sequiturs. Nobody who wants Bush to obey the law think that by doing so they guarantee success. Nor, by the way, does breaking the law guarantee success. Nothing guarantees success. Nor, obviously, do Bush's critics maintain that morality could make our enemies give up. Morality isn't a magic bullet to use against your enemy. Maybe Mansfield ought to notice that immorality isn't a magic bullet either. (Steve Holmes's brilliant essay in The Torture Papers acutely points out that the Bush Administration is engaged in magical thinking: if our enemy violates civilized standards, we prove that we're serious by doing so ourselves. If they're terrorists, we become snoops, liars, and torturers, which proves that we play to win.)

What's most remarkable about this article is that nearly every sentence in it is false.

Analysis of the Legality of the Secret NSA Warrantless Electronic Surveillance Program

Marty Lederman

This letter was sent today to congressional leaders from 14 law professors and former federal government officials. In it, we critique the Department of Justice's legal argument in support of the lawfulness of the secret NSA surveillance program. [UPDATE: The letter can also be viewed on the New York Review of Books website.] Here's the Introduction:

We are scholars of constitutional law and former government officials. We write in our individual capacities as citizens concerned by the Bush Administration’s National Security Agency domestic spying program, as reported in the New York Times, and in particular to respond to the Justice Department’s December 22, 2005 letter to the majority and minority leaders of the House and Senate Intelligence Committees setting forth the administration’s defense of the program. Although the program’s secrecy prevents us from being privy to all of its details, the Justice Department’s defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.

The basic legal question here is not new. In 1978, after an extensive investigation of the privacy violations associated with foreign intelligence surveillance programs, Congress and the President enacted the Foreign Intelligence Surveillance Act (FISA). Pub. L. 95-511, 92 Stat. 1783. FISA comprehensively regulates electronic surveillance within the United States, striking a careful balance between protecting civil liberties and preserving the “vitally important government purpose” of obtaining valuable intelligence in order to safeguard national security. S. Rep. No. 95-604, pt. 1, at 9 (1977).

With minor exceptions, FISA authorizes electronic surveillance only upon certain specified showings, and only if approved by a court. The statute specifically allows for warrantless wartime domestic electronic surveillance—but only for the first fifteen days of a war. 50 U.S.C. § 1811. It makes criminal any electronic surveillance not authorized by statute, id. § 1809; and it expressly establishes FISA and specified provisions of the federal criminal code (which govern wiretaps for criminal investigation) as the “exclusive means by which electronic surveillance … may be conducted,” 18 U.S.C. § 2511(2)(f) (emphasis added). [Footnote: More detail about the operation of FISA can be found in Congressional Research Service, “Presidential Authority to Conduct Warrantless Electronic Surveillance to Gather Foreign Intelligence Information” (Jan. 5, 2006). This letter was drafted prior to release of the CRS Report, which corroborates the conclusions drawn here.]

The Department of Justice concedes that the NSA program was not authorized by any of the above provisions. It maintains, however, that the program did not violate existing law because Congress implicitly authorized the NSA program when it enacted the Authorization for Use of Military Force (AUMF) against al Qaeda, Pub. L. No. 107-40, 115 Stat. 224 (2001). But the AUMF cannot reasonably be construed to implicitly authorize warrantless electronic surveillance in the United States during wartime, where Congress has expressly and specifically addressed that precise question in FISA and limited any such warrantless surveillance to the first fifteen days of war.

The DOJ also invokes the President’s inherent constitutional authority as Commander in Chief to collect “signals intelligence” targeted at the enemy, and maintains that construing FISA to prohibit the President’s actions would raise constitutional questions. But even conceding that the President in his role as Commander in Chief may generally collect signals intelligence on the enemy abroad, Congress indisputably has authority to regulate electronic surveillance within the United States, as it has done in FISA. Where Congress has so regulated, the President can act in contravention of statute only if his authority is exclusive, and not subject to the check of statutory regulation. The DOJ letter pointedly does not make that extraordinary claim.

Moreover, to construe the AUMF as the DOJ suggests would itself raise serious constitutional questions under the Fourth Amendment. The Supreme Court has never upheld warrantless wiretapping within the United States. Accordingly, the principle that statutes should be construed to avoid serious constitutional questions provides an additional reason for concluding that the AUMF does not authorize the President’s actions here.

The letter is signed by:

Curtis A. BradleyRichard and Marcy Horvitz Professor of Law, Duke UniversityFormer Counselor on International Law in the State Department Legal Adviser's Office, 2004

Ronald DworkinFrank Henry Sommer Professor, New York University Law School

Richard EpsteinJames Parker Hall Distinguished Service Professor, University of Chicago Law School Peter and Kirsten Bedford Senior Fellow, Hoover Institution

Harold Hongju KohDean and Gerard C. and Bernice Latrobe Smith Professor of International Law, Yale Law School Former Assistant Secretary of State for Democracy, Human Rights and Labor 1998-2001Former Attorney-Adviser, Office of Legal Counsel, DOJ, 1983-85